United States v. 2007-05-22 | 06-30370 | USA VSANDOVAL-SANDOVAL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 06-30370
v. D.C. No.
 CR-05-00004-JDSNESTOR SANDOVAL-SANDOVAL,
a.k.a. Hector Lopez, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Submitted May 10, 2007*
Portland, Oregon
Filed May 23, 2007
Before: Harry Pregerson, Pamela Ann Rymer, and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
*This panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
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COUNSEL
L. Sanford Selvey II, Selvey Law Firm, LLC, Billings, Mon-
tana, for the defendant-appellant.
Michael S. Lahr, Assistant U.S. Attorney, Helena, Montana,
for the plaintiff-appellee.
OPINION
PER CURIAM:
Defendant Nestor Sandoval-Sandoval stands convicted of
one count of illegal reentry of a deported alien in violation of
8 U.S.C. § 1326(a). He raises two issues in this timely appeal.
First, he disputes the district court’s order compelling a set of
fingerprint exemplars. Second, he challenges the district
court’s reliance at sentencing on a California court “abstract
of judgment” as evidence of the length of a prior sentence that
he served in state prison.
Defendant was a passenger in a car stopped by police. At
first, he gave a false name to the police and to the border
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patrol agents who were called to the scene. He later corrected
himself. Officials detained and fingerprinted him and learned
that he had been deported from the United States previously.
Defendant was charged with reentry of a deported alien.
[1] Before trial, Defendant moved to suppress the finger-
print evidence. The district court granted the government’s
cross-motion to compel a second set of fingerprint exemplars
and then denied as moot Defendant’s motion to suppress. We
affirm that ruling. See United States v. Ortiz-Hernandez, 427
F.3d 567, 577 (9th Cir. 2005) (per curiam) (holding that the
government may compel a defendant to provide fingerprint
exemplars for identification purposes even though the police
first learned the defendant’s identity through an illegally
obtained initial set of fingerprints), cert. denied, 127 S. Ct.
358 (2006). Nothing in our precedents or in those of the
Supreme Court precludes the district court in this specific
context from relying on a dispositive ground, while avoiding
decision on an alternative ground.
At sentencing, the district court applied a 16-level enhance-
ment pursuant to U.S.S.G. § 2L1.2(b)(1)(A) in reliance on a
factual finding that Defendant had been convicted earlier of
“a drug trafficking offense for which the sentence imposed
exceeded 13 months.” The district court relied on an abstract
of judgment issued by the California court of conviction to
determine the length of Defendant’s prior sentence.
[2] Defendant challenges this use of the abstract of judg-
ment, asserting that our decision in United States v. Navidad-
Marcos, 367 F.3d 903 (9th Cir. 2004), prohibits district courts
from relying on abstracts of judgment. That broad proposition
is incorrect. In Navidad-Marcos, we held that a district court
may not rely on an abstract of judgment to determine the
nature of a prior conviction for purposes of analysis under
Taylor v. United States, 495 U.S. 575 (1990). We held that the
documents contain insufficient information for that purpose.
We did not hold, as Defendant contends, that abstracts of
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judgment are categorically unreliable. Indeed, recently, we
permitted reliance on an abstract of judgment, in combination
with the charging document, for the purpose of determining
whether a defendant had a qualifying conviction under
U.S.S.G. § 2L1.2(b)(1)(A). United States v. Valle-Montalbo,
474 F.3d 1197, 1201-02 (9th Cir. 2007).
[3] Here, as in Valle-Montalbo, the district court relied on
the abstract of judgment to determine a discrete fact regarding
Defendant’s prior conviction, namely, the length of sentence
imposed. People v. Mitchell, 26 P.3d 1040, 1042-43 (Cal.
2001). The document unequivocally contained the informa-
tion needed. This was a permissible use of the abstract of
judgment. Therefore, the sentence is not erroneous for the rea-
son that Defendant argues.
AFFIRMED.
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